It is officially Spring therefore we've decided to 'Spring Clean' our e-newsletter.  I think busy lives and busy inboxes mean we have time only to skim rather than a savoured read.  So, unlike our hard copy newsletter, our e-newsletters will comprise less articles than previously.

If we have your postal address you will receive our hard copy Legal Update as well, which you can pop aside and read fully when you wish. You will find that we repeat some articles so you can skim over those you may have already read.

I hope you enjoy our new approach. 

Until next time happy reading and take care.

Shelly Rotherham

Rotherhams Legal Update:   Spring 2005

........ IN THIS ISSUE ..........

Building Compliance - Buying or selling where building work has been undertaken?

Recognising the Rights and Views of Children - Custody and Access....no more

Shelly's Hot Tip - Click 'send' too soon...... too often?

In Brief - Snappy updates

Our last Legal Update - A summary of the contents from our last issue in case you missed it

Building Compliance and The Building Act Background As at 31 March 2005, the Building Act 1991 was replaced by the Building Act 2004. Whilst some processes in the new legislation will be implemented over 3 to 5 years, others came into effect on 30 November 2004, and on 31 March 2005. The reason for the staggered nature of implementation is that it allows time for supporting regulations to be developed by Government. There are significant changes introduced by the new Building Act that have been designed to prevent the endemic problems associated with "leaky homes" over the past few years, and to provide consumers with a higher level of protection. One of the areas in which the impact is being felt is by vendors selling properties on which building work has been undertaken. Purchasers often require evidence of compliance with the Act. Building Code One of the fundamental principles of the Act is that all building works must comply with the building code. Compliance with the building code is mandatory regardless of whether or not a building consent is required for the work. Even for minor building projects, householders need to check whether or not the building code is relevant and if it is, must ensure that the building work complies with the requirements of the code. Evidence of Compliance The most common way a building owner may provide evidence that work complies with the building code is by obtaining and being able to provide the purchaser with a Code Compliance Certificate (CCC).  A CCC is issued where a building consent is applied for before building work is commenced. The CCC effectively provides that the consent authority is satisfied on reasonable grounds that the building work complies with the building consent. It is the building consent that is crucial in ensuring that the performance standards set out in the building code are met by the finished building product. A building consent will lapse if work does not commence within 12 months of the date of issue. However, it appears that commencement of work within the first 12 months after the building consent is issued preserves the consent indefinitely. Certificate of Acceptance Sometimes a purchaser will ascertain that building work for which a building consent and CCC should have been issued, has not been completed in accordance with those requirements. The Act provides that in that situation a building consent authority can issue a certificate of acceptance. A certificate of acceptance certifies, to the best of the building consent authority's knowledge and on reasonable grounds, that, as far as it could ascertain, the building work complies with the building code. Obviously this certificate conveys a far lower degree of quality assurance than a building consent or CCC. It replaces what was previously referred to as a "safe and sanitary" letter which followed an inspection by the Council certifying to the effect that the building was deemed to be neither unsafe nor unsanitary. Building Warrant of Fitness Another matter which may require consideration when purchasing a commercial building is whether or not a building warrant of fitness is required and is up to date. If a building contains systems or services that require ongoing maintenance in order to function at the level demanded by the building code, a compliance schedule must be established in regard to those systems to ensure that maintenance is routinely carried out. The compliance schedule sets out the inspection, maintenance and reporting procedures required to ensure that those systems meet performance standards. The building warrant of fitness confirms that the inspection, maintenance and reporting procedures set out in the schedule have been complied with for the foregoing 12 months. There are significant fines for a building owner who fails to obtain a compliance schedule or to display an up to date building warrant of fitness. The Auckland District Law Society form of Agreement for Sale and Purchase of Real Estate (7 th edition(2)) has been updated to incorporate the terms of the Act. If you require further information in regard to a specific building or a particular point mentioned in this article you are welcome to contact us directly. Back to Index Subscribe  now if you've been sent this Newsletter

Recognising the Rights and Views of Children On 1 July this year the Care of Children Act ("Act") replaced the Guardianship Act. The Act extends the principle that children's needs should be of primary importance in proceedings before the Family Court and increases children's rights of participation in those proceedings. Child's Welfare Paramount When making a decision under the Act, the court must ensure that the welfare and best interests of the child are the first and paramount consideration. The Act provides guidelines as to what constitutes the welfare and best interests of a child. Those guidelines are consistent with the principles of the United Nations Convention on the Rights of the Child (UNCROC). The Act emphasises agreement rather than litigation, with parents encouraged to share responsibilities and to reach agreement as to their child's care, development and upbringing. Emphasis is also placed on the child's right to know and be cared for by both parents. One of the key aims of the Act is to involve children in decisions that affect them. The child must be given a reasonable opportunity to express his or her views, and those views must be taken into account. Ways in which the court will achieve this include using the lawyer appointed to represent the child, obtaining a specialist report from a child psychologist or by the Judge talking to the child. Parenting Orders The Act also increases the ability of the Family Court to enforce parenting orders. The court will have the power to admonish the person breaching the order, vary an existing order, require the parties to attend counselling, or order the person in breach to enter into a financial bond to deter further breaches. The court can also issue a warrant that gives police the power to take possession of a child for the purpose of enforcing an order, but this is considered a last resort. Parents deliberately breaching parenting orders could face up to three months in prison or a maximum fine of $2500. Open Court The previously closed environment of the Family Court will be opened up, although this will still be subject to certain restrictions. The reporting of proceedings, with identifying details removed, will also be allowed. The key principle here is that justice must not only be done, but be seen to be done. New Terminology The Act also removes all reference to the terms "custody" and "access".  These are replaced with "day-to-day care" and "contact".   Contact includes contact by writing, email, telephone as well as direct face-to-face contact. One of the aims of the new terminology is to remove the implications of control and power associated with the term "custody".  Summary In conclusion, the new Act aims to move the focus away from parental rights, to parental responsibilities, recognising the child's right to participate in decisions affecting him or her and to ensure that those views are taken into account. The child's welfare and best interests must be the paramount consideration. Back to Index

Shelly's Hot Tip - Delay sending those emails. How often have we all been caught responding to emails too promptly - finding we've included content we shouldn't have, perhaps reacted too quickly, or simply forgotten to include vital information.   If you are quick enough you can 'recall or replace' your sent message however with the speed of many servers, this is not always going to work. Delay Delivery of a Specific Message To delay a specific message, select on the View menu, Options (or if you have your Options shortcut displayed on the tool bar simply click on this).  In the dialogue box you'll see 'delivery options' and here you select 'do not deliver before'..... which gives you options for both date and time of delivery. Set the Rule to Delay All Messages Why not set a rule which delays all sent emails for a nominated period? I have mine set for one minute, just long enough to give that breathing space to retrieve before it's too late.  The steps seem quite long but it really is quite easy.  If you are happy to work it out as you go start off on the Tools menu, click Rules and Alerts, and then click New Rule; start from a 'blank rule' and follow the prompts (actually there are a few ideas tucked away there for you to consider too!).  For detailed instructions use your Office Assistant by typing in the question 'delay sending a message'.  The messages sit for the nominated period in your Outbox. Give it a try - you can always remove the rule if it's of no value - personally I love it. Back to Index Subscribe  now if you've been sent this Newsletter

In Brief Increase to Paid Parental Leave On 1 July 2005 the maximum rate for parental leave increased from $346 a week to $357 a week. The increase will apply to new applicants for parental leave and those currently receiving it. The duration of paid parental leave will also increase from 13 weeks to 14 weeks by the end of this year.

Penalty Interest on Leases Commercial tenants would do well to carefully consider the penalty interest provisions in their lease agreements. Some agreements specify a percentage rate while others refer to a percentage (say 5%) above the interest rate charged by the Landlord's bank.  When the bank rate is high, some tenants can be paying 18% or more in penalty interest.  And be warned; just because the landlord is not taking action at the tenant's failure to pay rent, does not mean that penalty interest is not accruing and the landlord may eventually come knocking for the whole amount owed.

Our Last Legal Update    If you missed the last Newsletter the topics covered were: Solicitors Approval of Agreement Clause The Foreshore Debate Shelly's Hot Tip - Flagging for Followup Smokefree Law Key Amendments to the Employment Relations Act and you can access it on our website Back to Index Website:         www.rotherhams.co.nz Telephone:    +64 3 366 8751 Facsimile:      +64 3 365 2388 Address:         Christchurch Office                          Level 1, 85 Riccarton Road, P O Box 80162, Riccarton, Christchurch, NZ                           Kaikoura Office                           Hospital Building, Kaikoura - postal address as per Christchurch Branch